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ELRCStruck OutNot stated in judgment

Okwero & 6 others v Sokowatch Limited (Petition E183 of 2024) [2025] KEELRC 1663 (KLR)

Employment and Labour Relations Court
5 June 2025
930 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~4 min to read original · ~4 min brief

The bottom line

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Kenya's Employment Court struck out a constitutional petition by former employees because their unfair termination claims belonged under the Employment Act, not the Constitution.

What this practically means

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Executive summary

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The Respondent filed a preliminary objection dated 21.03.2025 challenging the court's jurisdiction to hear the petitioners' employment petition. It advanced four grounds: the petition offended constitutional avoidance as the reliefs were available under the Employment Act, 2007 for employees earning under Kshs 80,000 (a magistrate's court matter); the suit was sub judice given an active suit in Milimani MCELRC/E2221/2023 (Benson Mbaluka vs Sokowatch Limited); the petition failed the Anarita Karimi Njeru and Mumo Matemu pleading threshold and Rule 10(2) of the Mutunga Rules; and the ESOP claim concerned Sokowatch Inc., a Delaware entity governed by foreign law, contrary to the Lilian S jurisdiction principle and Salomon's separate personality doctrine. The court upheld the objection on the constitutional avoidance and pleading grounds, holding that the reliefs sought (12 months' compensation for unfair termination, one month's notice pay, certificate of service and costs) were all available under the Employment Act and that no violation of the Bill of Rights was disclosed with any constitutional reliefs. While affirming its original jurisdiction even for lower-earning employees and constitutional allegations, the court found the petition incompetent and an abuse of process absent a constitutional cause of action. The foreign-law ground failed as it raised issues of fact requiring evidence. The petition was struck out with each party bearing their own costs, the court noting the petitioners may pursue claims in the appropriate forum.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.Whether the petition is barred by the doctrine of constitutional avoidance as reliefs are available under the Employment Act, 2007
  2. 2.Whether the suit is sub judice given a similar active suit in Milimani MCELRC/E2221/2023 (Benson Mbaluka vs Sokowatch Limited)
  3. 3.Whether the petition meets the threshold for constitutional pleadings under Anarita Karimi Njeru and Rule 10(2) of the Mutunga Rules
  4. 4.Whether the Court lacks jurisdiction because part of the subject matter (ESOP) is governed by Delaware law
  5. 5.Whether the petition offends the doctrine of separate legal personality (Salomon v A Salomon & Co Ltd)

Key legal issues

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01

Constitutional avoidance

Holding

The preliminary objection succeeds because the reliefs sought are available under the Employment Act and no constitutional violation is disclosed

Reasoning

The court found the reliefs prayed for (12 months' compensation, notice pay, certificate of service, costs) are all available under the Employment Act, 2007. The petition disclosed no claim for violation of the Bill of Rights with attached reliefs. Hence constitutional litigation was unnecessary and the objection had to succeed.

p. 2
02

Adequacy of constitutional pleadings

Holding

The petition failed the Anarita Karimi Njeru/Mumo Matemu threshold and Rule 10(2) of the Mutunga Rules

Reasoning

The court held the petition did not set out the facts relied upon, the constitutional provisions violated, or the nature of injury caused or likely to be caused, as required by the cited rule. The petitioners merely cited constitutional provisions without demonstrating how they were violated.

p. 2
03

Jurisdiction over ESOP governed by Delaware law

Holding

This ground of the preliminary objection failed as it raised issues of fact requiring evidence

Reasoning

The respondent argued the ESOP was issued by Sokowatch Inc., a Delaware entity, so the court lacked jurisdiction. The court held this was an issue of fact requiring evidence and not a pure point of law on uncontested pleaded facts, so it failed the test for a proper preliminary point.

p. 3
04

Filing in the ELRC rather than the magistrate's court

Holding

Although the ELRC has original jurisdiction even for salaries below Kshs 80,000 and for constitutional allegations, the petition was incompetent and an abuse of process because no constitutional cause of action was disclosed

Reasoning

The court affirmed its original jurisdiction but found that, absent a constitutional cause of action, it was incompetent and abusive to file the petition instead of moving the magistrate's court, which though barred from constitutional petitions would be the appropriate forum for the statutory employment claims.

p. 3

Legal principles established

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  • A party should pursue statutory remedies before resorting to constitutional litigation where the reliefs sought are available under an ordinary statute (constitutional avoidance).
  • An issue that is one of fact requiring evidence cannot be determined on a preliminary objection as a pure point of law.

Court orders

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  1. 1.The preliminary objection dated 21.03.2025 is upheld
  2. 2.The petition is struck out
  3. 3.Each party to bear their own costs of the petition

The bench

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One judgment of the whole court — no separate or dissenting opinions.

majority

Wrote the judgment

Jurisdiction invoked
Original jurisdiction of the Employment and Labour Relations Court over employment disputes and constitutional petitions (Article 162(2) jurisdiction invoked implicitly); not expressly stated

Relief refused

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The petitioners' prayers for 12 months' compensation for unfair and unlawful termination, one month pay in lieu of notice, certificate of service and costs

The petition was struck out as it was trapped by constitutional avoidance and failed to disclose a constitutional cause of action

p. 3

Costs

Each party to bear their own costs of the petition

Quotable passages

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Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.

The Court finds that the petition is indeed trapped by the constitutional avoidance principle. The reliefs sought are all available under the Employment Act, 2007 and the petition does not raise any issue going beyond such reliefs available under the Act in an ordinary statute.
p. 2Constitutional avoidance
There is no disclosed claim for violation of the Bill of Rights and other constitutional provisions with attached reliefs in that regard. Accordingly, the preliminary objection must succeed.
p. 2Preliminary objection upheld
it is returned that such was an issue of fact requiring evidence and therefore not a pure point of law upon uncontested pleaded facts. That preliminary point fails to pass the test for a proper preliminary point.
p. 3Test for a proper preliminary objection
In conclusion the preliminary objection is upheld as found herein and the petition struck out with orders each party to bear own costs of the petition.
p. 3Final orders

Issues in the judgment

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minor

The judgment records that the case name and number in the parallel suit is 'Benson Mbaluka vs Sokowatch Limited', suggesting the 7th petitioner's name, but the full names of the petitioners and the petition's case number are not stated in the judgment

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Okwero & 6 others v Sokowatch Limited (Petition E183 of 2024) [2025] KEELRC 1663 (KLR)", Case Analysis (2025). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2025/1663/eng@2025-06-05

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.